Surrogate pregnancy: challenging the legal definition of motherhood


Since the first cases in the 1980's, surrogacy is increasing, both as a solution to subfertility and to avoid life-threatening pregnancies. More surrogacy cases can be expected in the future as same sex and unmarried couples gain the same rights as married heterosexual couples to obtain parental rights in surrogacy arrangements. Surrogacy involves an agreement for a woman to become pregnant and then hand over the subsequent child to the commissioning couple. There are two types of surrogacy: full (gestational/host) surrogacy involves the commissioning parents' embryo or donor gametes being transferred into the surrogate's uterus; and partial surrogacy involves artificial insemination using the intended father's/donor sperm and the surrogate's egg (the surrogate has a genetic link with the child in partial surrogacy).

Although the surrogate and commissioning couple sign a “contract”, it is legally unenforceable in the UK and Ireland. UK jurisdiction dictates that the surrogate is the legal mother (HFE Act 2008, section 33). Previously, surrogates have tested this definition of motherhood and decided to keep the baby as seen in the UK case Re P (Minors) (Wardship: Surrogacy) ([1987] 2FLR 421), and by questioning the best interests of the child as seen in the US case Re Marriage of Moschetta (30 Cal Rptr 2d 893 [1994]) where the partial surrogate failed to gain custody when the commissioning couple divorced.

There are no guidelines for surrogacy in the UK and in most other countries, though in the USA the American College of Obstetricians and Gynaecologists provides guidance (ACOG 2008, Committee Opinion No. 397, Vol. 111, pp. 465–470). In a recent Irish case, M.R & Anor v An tArd Chlaraitheoir & Ors ([2013] IEHC 91), the commissioning couple successfully challenged the definition of motherhood. This case involved a married couple, who used IVF to produce their own embryos and the wife's sister was the host/gestational surrogate. The Birth Registrar's legal representative argued that “mater semper certa est” (motherhood is certain) as the medical records confirmed that the surrogate gave birth. The commissioning couple's counsel and Expert Medical Witnesses concluded that the child was genetically from the commissioning couple, who remained the intended parents, and that the mother-to-child blood-link was a sacred “primordial constitutional principle”. This case was unique as the surrogate did not contest but instead supported her sister. The High Court set a precedent by making the commissioning/genetic mother the legal mother, thus signing the birth certificate. Although legally the genetic/commissioning mother can be regarded as the mother, there should be no conflict for doctors as medically the surrogate remains the mother to whom a duty of care is owed. Establishing which principles should determine motherhood, whether this be genetics, carrying a child in pregnancy, or signing a contract agreeing to bring up a child, is a moral and legal difficulty, and the definition of motherhood continues to be challenged in courts around the world.

Disclosure of interests

None declared.